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Getting by with good intentions

Marijuana case shows how sometimes the intention of an employee can help lessen the level of discipline​
REUTERS/Jaime Saldarriaga

By Jeffrey R. Smith

Sometimes the best intentions get thwarted by the end results. And even if the intentions aren’t the best, the end result can make them worse.

However, this doesn’t always apply when it comes to employee misconduct. Sometimes the intention of the employee can help lessen the level of discipline coming to her. In most cases, it’s at least a consideration when looking at mitigating factors that could alleviate the consequences.

Earlier this year, employees at an Ontario automotive plant were seen going out to the company parking lot during an evening shift. One of the employees retrieved a shopping bag containing two marijuana plants from his car and gave it to the other. The second employee then took the bag and hid it in a section of the building that wasn’t being used.

A supervisor saw the employee going to the unused part of the building and went to check it out. He found the bag with the marijuana plants inside.

The company had a strict policy banning intoxicating substances at the workplace, including a provision in the collective agreement. The workplace was safety sensitive due to all the manufacturing machinery and drugs and alcohol were not allowed under any circumstances and any employees showing up for work under the influence would face discipline.

The company fired the two workers for violating the employee code of conduct and the health and safety of the workplace. The employees challenged the dismissal, arguing they hadn’t intended to consume the drug at work and the plants weren’t in consumable form anyway. As a result, they didn’t intend to be intoxicated at work or create a safety risk.

The arbitrator agreed with the company that drugs and alcohol should be banned from the workplace for safety reasons and the fact the plants weren’t in consumable form wasn’t a guarantee there was no safety risk. The policy was reasonable and the employees were guilty of serious misconduct, said the arbitrator.

However, the arbitrator placed weight on the fact the employees didn’t intend to consume marijuana in the workplace. Though they violated the company’s safety rule, no real harm was done and their intentions counted for something. The company was ordered to reinstate the two employees with the two months since their dismissal serving as a disciplinary suspension and a last-chance agreement in place stipulating that if they were found to be in possession of a mind-altering substance at work again, they would be terminated.

So though the employees’ misconduct was serious and was considered a safety risk, they were given another chance. And it was only one more chance with the last-chance agreement in place. Their intentions were not to cause any safety risk, they were just transferring the marijuana plants for use outside the workplace. In the arbitrator’s eyes, this lessened the risk: see THK Rhythm Automotive Canada Ltd. and TPEA (Rodwell), Re, 2016 CarswellOnt 9433 (Ont. Arb.).

There have been other cases where an employee’s good intentions have helped mitigate their discipline. Employees who were caught stealing but didn’t realize or intend to steal. Harassment complaints that came about from what the harasser thought was good-natured ribbing. A mistake that an employee inadvertently made while trying to do better. These are all instances of misconduct that could be lessened if the employee was unaware of the potential harm.

The main reason good intentions can lessen discipline for misconduct is likely related to the opportunity for rehabilitation. Dismissal is the capital punishment of employment and is usually only accepted by courts, tribunals and arbitrators when the employment relationship is damaged beyond repair. If an employee didn’t mean it, then the opportunity for rehabilitation is high and the likelihood of re-offending is low — and therefore the employment relationship is not irreparably damaged.

Sometimes good intentions can get someone another chance.

Jeffrey R. Smith

Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at workplace law from a business perspective.
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